Fake-Identity “Customers” and Deferred Restitution: Bank Fraud Property Interests Under § 1344(1) and MVRA Jurisdiction

I. Introduction

In United States v. Omoruyi (1st Cir. July 15, 2026), the First Circuit affirmed the convictions and sentences of brothers Osakpamwan Henry Omoruyi (“Henry”) and Osaretin Godspower Omoruyi (“Osaretin”) for bank fraud (18 U.S.C. § 1344), conspiracy to commit bank fraud (18 U.S.C. § 1349), and conspiracy to commit money laundering (18 U.S.C. § 1956(h)). The government proved that the brothers used fake passports (bearing their photographs but different names) to open bank accounts, used those accounts to receive proceeds of romance and unemployment-identity scams, and withdrew funds using debit cards tied to the false identities.

On appeal, they challenged (1) the sufficiency of the evidence on bank fraud and bank-fraud conspiracy; (2) the court’s materiality instruction for bank fraud; (3) the court’s response to a jury question about conspiracy; (4) a sentencing enhancement for use/possession of an “authentication feature” under USSG § 2B1.1(b)(11)(A)(ii); and (5) restitution—both the district court’s jurisdiction to enter a deferred restitution order after a notice of appeal and the merits of the restitution calculation and joint-and-several liability.

II. Summary of the Opinion

The First Circuit affirmed across the board. It held:

  • The evidence was sufficient to convict under § 1344(1) and § 1349 where defendants used fake identities to open FDIC-insured accounts and withdrew deposited scam proceeds using debit cards tied to those false identities.
  • The district court did not plainly err by instructing that a “material” fact is one with a “natural tendency to influence” or “capable of influencing” the decisionmaker, consistent with circuit precedent.
  • The district court’s response to the jury’s conspiracy question did not misstate the law or confuse the jury; the instructions as a whole repeatedly anchored the jury to the conspiracy “as charged in the indictment.”
  • The two-level “authentication feature” enhancement was properly applied because passports contain identifying numbers qualifying as authentication features, and defendants used/possessed the fake passports to facilitate the offense.
  • The district court retained jurisdiction to impose restitution after the initial judgment (which deferred restitution) even though defendants had already appealed.
  • The restitution award to eleven victims was supported by sufficiently reliable evidence (including victim impact statements and FBI Form 302s), and joint-and-several liability was permissible under 18 U.S.C. § 3664(h).

III. Analysis

A. Precedents Cited

1. Sufficiency review, double jeopardy sequencing, and conspiracy proof

  • United States v. Díaz- Rosado and United States v. Cruz-Díaz supplied the governing sufficiency standard: reviewing de novo, in the government’s favor, with all plausible inferences for the verdict.
  • United States v. Pérez-Greaux and United States v. Maldonado-Peña were cited for the practical ordering principle: addressing sufficiency first because a successful sufficiency challenge would implicate the Double Jeopardy Clause and bar retrial.
  • United States v. Blasini-Lluberas provided the First Circuit’s baseline conspiracy framework (agreement may be tacit; participation may be proven circumstantially; conspiracy requires the defendant’s knowing participation and an overt act).

2. Bank fraud property interest and the “fake customer” distinction

  • Shaw v. United States was the centerpiece of defendants’ insufficiency theory. They argued that because they were the “customer[s] in fact,” withdrawals from their own deposit accounts could not deprive the bank of “something of value.” The First Circuit distinguished Shaw as involving a real customer’s account and explained that its “something of value” holding does not convert a fake-identity account holder into the relevant “customer” for § 1344(1) purposes.

3. Materiality and plain error constraints

  • United States v. Moran controlled the materiality formulation for bank-fraud-related misrepresentations: “natural tendency to influence” or “capable of influencing” the decisionmaker.
  • Maslenjak v. United States was invoked by defendants to demand a stricter instruction (truth would have produced a different outcome). The First Circuit rejected that move because the circuit had not adopted Maslenjak’s standard for bank fraud.
  • United States v. Vega, United States v. González- Vélez, and United States v. Paniagua-Ramos anchored the demanding nature of plain-error review for unpreserved instruction claims.
  • United States v. Langston supplied the key plain-error principle: absent “binding on-point precedent,” an asserted instructional defect is rarely “clear or obvious.”

4. Supplemental instruction to jury and how instructions are evaluated

  • United States v. Jadlowe set the split standard: de novo for legal correctness; abuse of discretion for whether wording/structure misled or confused the jury.
  • United States v. Gonzalez emphasized that instructions are reviewed “as a whole” and that trial courts have “considerable discretion” in phrasing.
  • United States v. Correia was cited for the presumption that juries follow instructions.
  • United States v. Zannino was used to deem waived defendants’ underdeveloped “constructive amendment”/“variance” suggestion.

5. Sentencing review standards and the authentication-feature enhancement

  • United States v. Leach and United States v. Ruiz-Huertas framed review of preserved sentencing issues (de novo on guideline interpretation/application; clear-error review of factfinding; abuse-of-discretion overall).

6. Deferred restitution jurisdiction during an appeal

  • United States v. Naphaeng was treated as directly supporting continuing jurisdiction to enter an amended restitution order while the initial appeal is pending when restitution was deferred under the MVRA.
  • United States v. George was distinguished as a forfeiture case where the initial judgment did not actively defer forfeiture—later clarified in United States v. Carpenter.
  • Dolan v. United States and Manrique v. United States supplied the Supreme Court framework: MVRA allows deferral; deferred restitution typically yields two appealable judgments.
  • L. Offs. of David Efron v. Matthews & Fullmer L. Firm was cited for de novo review of jurisdictional questions.

7. Restitution proof standards and evidentiary flexibility

  • United States v. Chiaradio governed restitution review (abuse of discretion; factual findings for clear error; legal questions de novo).
  • United States v. Simon emphasized deference and that restitution needs only a “modicum of reliable evidence.”
  • United States v. Carrasquillo-Vilches underscored MVRA restitution for “actual losses.”
  • United States v. Alphas supplied the “adequate causal link” framing for MVRA causation (noting it was superseded on other grounds by Carrasquillo-Vilches).
  • United States v. Padilla-Galarza imposed a burden-shifting practical rule: once the government makes a prima facie loss showing, defendants must identify evidence supporting specific reductions; speculation is insufficient.
  • United States v. Salas-Fernández and United States v. Gallardo-Ortiz supported considering non-trial materials at restitution because normal evidence rules do not apply.

B. Legal Reasoning

1. Bank fraud under § 1344(1): “customer in fact” does not defeat “something of value”

The key doctrinal move is the court’s rejection of the defendants’ attempt to reframe Shaw v. United States as a “who is the real customer?” rule. The panel read Shaw for what it decided: § 1344(1) requires that the scheme target bank property—“something of value”—and a plan to deprive a bank of money in a customer’s deposit account qualifies because the bank has a property interest in deposited funds. The panel then emphasized the factual mismatch: in Shaw, the account belonged to a real customer; here the accounts were opened using false identities. Thus, defendants could not bootstrap “customer” status by claiming they were opening the accounts “for themselves” while simultaneously misrepresenting identity to the bank.

On the evidence, the court found it straightforward: fake passports were used to open TD Bank accounts, TD Bank is FDIC insured, and defendants withdrew funds using debit cards bearing the fake names. That combination supported a rational finding that defendants knowingly executed a scheme to defraud a financial institution under § 1344(1).

2. Bank-fraud conspiracy under § 1349: coordination evidence supports agreement and overt acts

Relying on United States v. Blasini-Lluberas, the court treated account-information sharing and movement of funds as circumstantial proof of an agreement and voluntary participation. Evidence that proceeds flowed among the brothers’ accounts and that each withdrew funds supported overt acts furthering the charged conspiracy.

3. Materiality instruction: the “natural tendency” test remains controlling (at least on plain-error review)

The defendants’ desired instruction—material only if truth would have changed the outcome—was rejected because the district court used the language approved in United States v. Moran. The panel also refused to extend Maslenjak v. United States (an immigration-fraud context) into bank-fraud materiality, especially under plain-error review. Invoking United States v. Langston, the court held that absent binding on-point precedent, no “clear or obvious” error could be shown.

4. Jury question on conspiracy: “as charged in the indictment” language prevented a separate-conspiracies verdict

The jury asked whether the government had to prove Henry conspired with Osaretin, or whether separate agreements with others sufficed. The district court answered that each defendant could be convicted even if the other was acquitted, and that the jury need not find they conspired with each other so long as the government proved the conspiracy “as charged in the indictment” and that the defendant conspired with at least one other person “as charged in the indictment.”

Evaluating instructions “as a whole” under United States v. Gonzalez and applying the legal/abuse-of-discretion framework of United States v. Jadlowe, the panel held the response did not authorize conviction for uncharged conspiracies. It also relied on the presumption that juries follow instructions (United States v. Correia) and deemed undeveloped constructive-amendment/variance arguments waived under United States v. Zannino.

5. USSG § 2B1.1(b)(11)(A)(ii): passport identifying numbers qualify as “authentication features”

The panel treated the enhancement as a matter of guideline application: “authentication feature” includes means used to determine whether a document is counterfeit or falsified (cross-referenced through the guideline commentary’s adoption of 18 U.S.C. § 1028(d)(1)). Passports contain unique identifying numbers, which fit that definition. Because the record showed defendants possessed/used the fake passports to open the accounts that enabled the fraud, the enhancement was properly applied.

6. MVRA jurisdiction: deferring restitution preserves district-court power to set the amount even after a notice of appeal

The defendants argued that their appeal from the initial judgment divested the district court of jurisdiction to enter restitution later. The panel rejected that premise by combining the MVRA’s deferral mechanism (18 U.S.C. § 3664(d)(5)) with Supreme Court and circuit precedent recognizing deferred restitution as a distinct procedural track. Citing Manrique v. United States, the court emphasized deferred restitution yields “two appealable judgments.” Citing United States v. Naphaeng, it held the district court retained jurisdiction to enter the later restitution order while the appeal was pending, and it clarified that Naphaeng does not require the initial judgment to contain a provisional restitution amount. The panel distinguished United States v. George (forfeiture), relying on United States v. Carpenter to explain why George does not control a properly deferred restitution order.

7. Restitution proof: victim impact statements and FBI 302s can be “reliable evidence”

The district court limited restitution to eleven victims and relied on trial testimony for some and victim impact statements and FBI Form 302s for others. The First Circuit held this was permissible because the rules of evidence do not apply at restitution, and the governing question is reliability and causal linkage. Under United States v. Simon, only a “modicum of reliable evidence” is needed; under United States v. Padilla-Galarza, once the government makes a prima facie showing, defendants must point to evidence supporting specific reductions. Generalized claims that victims “might be lying” did not rebut the government’s showing, particularly where lying to federal agents implicates 18 U.S.C. § 1001.

8. Joint and several liability: permissible without role-by-role apportionment

Under 18 U.S.C. § 3664(h), the district court may impose full restitution liability on each defendant when multiple defendants contributed to the loss. Citing United States v. Salas-Fernández, the panel reiterated the sentencing court is not required to apportion restitution by relative role, and it found no error in making the brothers jointly and severally liable for the losses the court attributed to the offense conduct.

C. Impact

  • Bank fraud prosecutions involving fake identities: The decision strengthens § 1344(1) cases where defendants open accounts under false identities and later claim they were the “real” accountholders. It clarifies that Shaw v. United States cannot be repurposed to legitimize fake-identity account openings as “customer” conduct that defeats the bank’s property-interest theory.
  • Materiality challenges in bank fraud: At least on plain-error review, the “natural tendency/capable of influencing” materiality instruction endorsed by United States v. Moran remains safe harbor language; attempts to import Maslenjak v. United States into § 1344 instructions face steep obstacles absent on-point circuit adoption.
  • Conspiracy instructions and partial verdicts: The opinion affirms the permissibility of instructing that co-defendants need not be found to have conspired with each other, so long as the conspiracy “as charged in the indictment” is proved and each defendant conspired with at least one other participant in that charged scheme—helpful guidance when indictments charge conspiracies with “others known and unknown.”
  • Sentencing enhancements for counterfeit identity documents: By treating passport numbers as “authentication features,” the decision supports applying USSG § 2B1.1(b)(11)(A)(ii) in identity-document bank-fraud cases even where the document’s primary function was account opening rather than direct presentation at withdrawal.
  • Restitution practice: The jurisdiction holding reinforces that a properly deferred MVRA restitution determination can proceed notwithstanding a pending appeal, aligning procedural expectations for multi-stage judgments. Substantively, the court’s acceptance of victim impact statements and FBI 302s underscores the practical evidentiary flexibility of restitution litigation and highlights the defendant’s burden to offer concrete rebuttal evidence rather than conjecture.

IV. Complex Concepts Simplified

  • § 1344(1) vs. § 1344(2): § 1344(1) targets schemes “to defraud a financial institution”; § 1344(2) targets obtaining bank-controlled property “by means of” false pretenses. The court affirmed under § 1344(1) without needing § 1344(2).
  • “Something of value” (bank property interest): Banks have a property interest in deposited funds; a scheme to wrongfully access and withdraw funds from deposit accounts can be bank fraud even if the bank is not the ultimate intended victim.
  • Materiality: Under the “natural tendency” test, a statement is material if it could influence a decision (e.g., whether to open an account), even if one cannot prove the decision would certainly have changed.
  • Plain error review: If the defense did not object at trial, reversal requires an error that is clear/obvious under existing binding law and that seriously undermines fairness—an intentionally high threshold.
  • Conspiracy and “others known and unknown”: A defendant can conspire with unidentified co-conspirators; conviction does not necessarily require that two named defendants conspired directly with each other, so long as the charged conspiracy is proved.
  • Authentication feature: A security/verification element on a document (like a passport number) used to detect counterfeiting; possessing/using a fake document with such a feature can increase the guideline offense level.
  • Deferred restitution: MVRA allows the court to enter a judgment imposing restitution but defer setting the amount; the later order fixing the amount is separately appealable.
  • FBI Form 302: An agent’s summary of a witness/victim interview; it is not sworn testimony, but can still be used at restitution if sufficiently reliable.
  • Joint and several liability: Each defendant can be responsible for the full restitution amount when each contributed to the victim’s loss; the court may, but need not, apportion.

V. Conclusion

United States v. Omoruyi reinforces that using fake identities to open bank accounts and withdraw fraud proceeds is classic § 1344(1) bank fraud, and that Shaw v. United States does not confer “customer” protection on defendants who procured accounts by identity falsification. The opinion also provides practical guidance on (1) the continued viability of the First Circuit’s United States v. Moran materiality instruction in bank-fraud cases, (2) how trial courts may answer conspiracy-related jury questions without authorizing uncharged conspiracies, (3) application of the “authentication feature” enhancement to counterfeit passports, and (4) the MVRA’s deferred-restitution procedure—both jurisdictionally (post-appeal) and evidentiary (reliable, non-trial materials). Collectively, the decision strengthens prosecutorial tools against account-opening identity fraud while clarifying procedural rules that frequently arise in complex, multi-victim financial-crime cases.